Juridical Ideas Research Articles

Institutional constraints on ‘nudge-style’ risk rating systems: explaining why food hygiene barometers were rolled-out in the UK but abandoned in Germany

This article advances international comparative regulatory scholarship on the implementation of nudge-style risk rating systems that are used to empower the public to make ‘right’ choices for their health, safety or security and help shape regulatee behaviour. Little attention, however, has been paid to the policy question of the extent to which the international introduction of such approaches and the form that they take, is dependent on the institutional contexts of regulation in different countries. Drawing on 55 key informant interviews and extensive policy document analysis, we examine starkly contrasting attempts to introduce ‘food hygiene barometers’ in the UK and Germany, having been successfully introduced in the former, but abandoned in the latter. This outcome can partly be explained by the stronger sectoral organisation of food businesses and the number of policy veto points they can exploit in Germany compared to the UK. More significantly, however, the study identifies strong institutional contrasts between the two countries; both in the way they balance rights to consumer information, public health and economic activity as well as the extent to which ideas of consumer sovereignty can be instrumentalised for regulatory purposes. The article concludes by pointing to how the form, purposes or even the very possibility of nudge-style public policy interventions are likely to vary from country to country, depending on their fit with the conceits and character of nationally-specific regulatory philosophies, constitutional and legal norms, and juridical ideas about consumer sovereignty.

Law, Freedom, and “Truth”: Eurasianist Philosophy of Law

ABSTRACT The conception of Eurasianist legal philosophy (1920–1930) represents an interesting but little studied phenomenon. Most researchers consider either the general features of Eurasianism or the individual legal views of Eurasianists without investigating their political and juridical ideas in the multiplicity of their manifestations. The author of this article attempts to fill in this gap by analyzing the concepts like “law,” “freedom,” “right-duty” (pravoobrazovannost’), and “positive law,” which are crucial for the Eurasianist concept of legal philosophy, revealing the contemporary reflection of the Eurasianist legal ideas in academic and publicistic texts.

Power and Family Law in Luso-Brazilian Thought: Enlightenment and the circulation of juridical ideas and legal culture

This text focuses on juridical ideas, with reference to the issue of power and discipline in the family in the transition to modernity. It analyses the range of juridical and political ideas permeating the heated debates that have taken place in Portugal and Brazil, when much was made to modernize civil codes (19th century). It considered firstly the process in which Enlightenment ideas circulated in the field of Law, and it focussed on potestas and the ideological conditionings of the discussion over civil marriage, which accompanied the secularisation and modernization process in Portugal and Brazil. This issue seems to have constituted the touchstone for the conservative resistance that hampered the reforms. These subjects have assumed enormous importance today, at the turn of the millennium, in view of the reform of civil code in Brazil and the debate on abortion and same sex marriage. The empirical research is based in the bibliographical production published during the 19th century (theses, books, and articles in juridical journals) in Brazil and Portugal.

La relación entre moral y derecho en el paleopositivismo y el positivismo Jurídico

En este trabajo se realiza una crónica histórica de las relaciones entre moral y derecho, tal como las concibiera el positivismo jurídico, desde los desarrollos de Austin hasta los planteos de Hart, efectuados en su mayor parte a partir de la década del 60, durante el siglo XX. Resulta interesante advertir que, de una posición en la que se negaba toda posibilidad de una metafísica, en la que se postulaba una neutralidad valorativa, como ocurría con las tesis de Austin y de Kelsen, se ha ido desarrollando progresivamente la idea de que una unión entre moral y derecho no sólo es posible, sino que incluso resulta necesaria. Esto resulta particularmente destacable en Hart, autor que ha tenido una concluyente evolución en este sentido. El autor concluye que la admisión, por parte del último Hart, de un positivismo “suave” que incluya cierta idea moral, ha sido una bocanada de aire fresco para la teoría general del derecho que ha contribuido a la adecuada protección de los derechos humanos. Ello ha permitido un avance cierto en el desarrollo de las ideas jurídicas contemporáneas.

Ideas and Legal Principles in 18th Century Europe. Romanian Principalities Connection with the “Acquis” Communautaire

In this paper the author have tried to capture some of the western influence on the juridical ideas from the principalities (Walachia and Moldavia) in 18th century and the first half of the 19th century.

Exploração da experiência histórica que condicionou a recepção e o surgimento das idéias jurídicas no Brasil

Este trabalho relata, através de vários períodos da história do País, o surgimento das ideias jurídicas, que vai desde a chegada dos portugueses, em 1500, mesclada com a dominação dos conquistadores europeus, até os dias de hoje.

"Economic Constitution": On the Roots of a Legal Concept

Our world is in abundance of most different kinds of legal systems, but none of them is as thoroughly imbued with constitutional ideas and categories as the American law. Thus, the dedication of an article dealing with a concept of constitutional law to an American judge and scholar seems not inappropriate. The contribution focuses on a legal term of specifically continental European thinking, the concept of “Wirtschaftsverfassung” or, translated literally, of “economic constitution.” I will try to explain on which premises and under which circumstances this legal term has been developed during the first decades of our century. Concepts often share the fate of human thoughts in general: they appear for the first time in certain contexts, they journey through time and space, they flourish in one place and sink in another; for long periods they may be missing yet they come to life again all of a sudden in a new context. The concept of the economic constitution is such a case, too. It can be found already in the Physiocrats, but no fixed place is assigned to it; every now and then it has been used by authors of the 19th century but without any chance of gaining a foothold; in our century, however, it secures the status of a central concept for legal doctrine and theory of constitution, at least among the German jurists. So, unlike many other juridical concepts, this one does not root in a common European heritage like ancient Roman law or the law of the medieval Church; and with regard to the political and juridical ideas of the Natural Law School and the Enlightenment the continuities are so sparse and faint that it is hardly possible to trace the lines back over the centuries.

Occidental Legal Ideas in Japan: Their Reception and Influence

ONE of the most notable French sociologists of the 19th century, Gabriel Tarde, has pointed-out the important part that imitation plays in the transformation of social phenomena. When we look at the history of law and legal institutions, we are struck by the very prominent role which this imitative instinct has played in the juridical field. Take, for instance, the theory of judicial precedent which is considered characteristic of the Anglo-American administration of justice. Although something of the creative element may be discerned beneath the surface, the system of following precedents in judicial administration is largely a system based on imitation of the decisions of predecessors. But in the juridical world Monsieur Tarde's thesis finds its most striking support in the phenomenon called the Reception of Law. When Europe began to build up its modern civilization, what Maitland calls Three R's-Renaissance, Reformation and Reception-constituted the three outstanding events of the New Age. The reception of Justinian's Corpus Juris by peoples especially of Continental Europe is a fundamental fact by which not only the law of modern Continental Europe but also of Latin America has been determined. No less remarkable is the reception of the English Common Law in the United States. Theoretically, the Pilgrim fathers may be said to have brought their law with them from England, but practically, as Dean Pound ably points out, in his Spirit of the Common Law, the reception of English law in the United States took place after the American independence, and chiefly through the decisions of the courts in the first half of the 19th century. No less striking is the reception of occidental laws in the oriental countries. The most interesting examples are the reception of English law in India as is evidenced in the so-called Anglo-Indian Codes, the reception of German Codes in Japan, and present-day movements of a similar character in Siam, Turkey and China. The history and influence of the reception of occidental laws and juridical ideas in Japan is instructive in many ways.